Fair Work Ombudsman v Austrend International Pty Ltd [2018] FCA 171

Fair Work Ombudsman v Austrend International Pty Ltd [2018] FCA 171

The Court found that, even on the applicant's highest evidence, there was no conduct by Austrend capable of 'forcing' Ms Aragon to resign within the meaning of constructive dismissal under s 386(1)(b) of the Fair Work Act 2009 (Cth); Ms Aragon's resignation was voluntary and mutually agreed. Therefore, the constructive dismissal claim had no reasonable prospect of success and summary judgment for the respondents was granted. The applicant was also ordered to pay the respondents' costs on an indemnity basis because the claim was instituted without reasonable cause.

Parties
Applicant: Fair Work Ombudsman; First Respondent: Austrend International Pty Ltd (ACN 095 733 092); Second Respondent: Denzil Godfrey Rao
Jurisdiction
Australia
Judgment Date
28 February 2018
Procedural Posture
Summary Judgment Application / Interlocutory – Summary Judgment Determination
Outcome
Summary judgment for the respondents; constructive dismissal claims dismissed; costs awarded to respondents on an indemnity basis.
Legal Topics
Summary Judgment, Constructive Dismissal, Adverse Action, Costs – Indemnity, Sex And/or Pregnancy Discrimination
Practice and Procedure Industrial Law Employment Law Summary Judgment Constructive Dismissal Adverse Action Costs – Indemnity Sex And/or Pregnancy Discrimination

Case Brief

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Parties

Fair Work Ombudsman

Applicant

Austrend International Pty Ltd (ACN 095 733 092)

First Respondent

Denzil Godfrey Rao

Second Respondent

Procedural Posture

Summary Judgment Application / Interlocutory – Summary Judgment Determination

Legal Issues

  1. 1 Whether summary judgment should be granted on the constructive dismissal claim under s 351 of the Fair Work Act 2009 (Cth)
  2. 2 Whether Ms Aragon was constructively dismissed (i.e., forced to resign) within the meaning of s 386(1)(b) of the Fair Work Act 2009 (Cth)
  3. 3 Whether costs should be awarded against the applicant under s 570 of the Fair Work Act for a claim with no real prospects of success

Ratio Decidendi

The Court found that, even on the applicant's highest evidence, there was no conduct by Austrend capable of 'forcing' Ms Aragon to resign within the meaning of constructive dismissal under s 386(1)(b) of the Fair Work Act 2009 (Cth); Ms Aragon's resignation was voluntary and mutually agreed. Therefore, the constructive dismissal claim had no reasonable prospect of success and summary judgment for the respondents was granted. The applicant was also ordered to pay the respondents' costs on an indemnity basis because the claim was instituted without reasonable cause.

Court Disposition

Summary judgment for the respondents; constructive dismissal claims dismissed; costs awarded to respondents on an indemnity basis.

Orders

  • The applicant's claims that Austrend International Pty Ltd contravened s 351 of the Fair Work Act 2009 (Cth) by constructively dismissing Ms Aragon and that Denzil Godfrey Rao was involved in that contravention, be dismissed.
  • The applicant pay the respondents' costs of the respondents' interlocutory application and the costs associated with the constructive dismissal claims on an indemnity basis, to be taxed if not agreed, and paid forthwith.